It’s Time to Get it Right

When a curious woman approached Benjamin Franklin as he was leaving the Constitutional Convention in Philadelphia in September 1787 and asked him what kind of government the delegates had given the people, he replied: “…A Republic, Ma’am, if you can keep it.” That’s hopefully what we’re doing here, with this forum, and other such forums around the state and around the country… we’re learning how to keep our republic.

Once the Constitution was ratified by the States, the American experiment began. The Constitutional republic that our Founders envisioned and provided became a place of freedom and opportunity for countless millions of people from all over the world. The experiment was successful because our system was based on enduring principles which recognized that human beings, although imperfect, are capable of excellence when left to pursue happiness while endowed with certain liberties that their government is obligated to protect and while also enjoying a government that was designed to step aside to allow the human spirit to soar. Here in this country, for the first time, human rights were grounded on the grand notion that man is born with certain God-given rights and not on the premise that rights are granted by government. Furthermore, our Founders declared that government is created by the people for the People, for their own convenience and for the protection of their most fundamental, God-given rights – to Life, Liberty and the Pursuit of Happiness. Our Founders knew that the best way to protect those rights was to have a limited government, of defined powers, and dependent upon the consent of the people, who themselves, would understand and cherish those principles.

As we look around the world and notice how difficult it is for democracy and freedom to take hold and flourish, our country seems like a political miracle. It is indeed a terrible, but awesome, burden that we carry for all people yearning to be free and independent to make sure that our experiment proves to be on solid ground, on solid principles, and therefore a continued success story. We may be Republican or Democrat or Independent or Libertarian, but it is our collective faith in our founding documents, the Declaration of Independence and the Constitution, that makes us American.

In 1776, Thomas Jefferson drafted a Declaration of Independence that would come to define our nation. It continues to be our moral compass. It is a remarkable proclamation of human rights — brilliant in its concept, clarity, and choice of words. The Constitution of the United States is also a remarkable document. It is an extraordinary mix of governmental limits, checks and balances, and divisions – all intended to secure and enlarge for posterity the individual’s sovereignty as proclaimed in the Declaration. Our Founders made sure to give us a government of limited and clearly-defined responsibilities, reserving to the States the true power over We the People, where it can be most responsive to us and our interests. The genius of the Founding Fathers was their ability not only to grasp the revolutionary ideas of their time, but also to devise a means of implementing those ideas in practice, a means of translating them from the realm of philosophic abstraction into that of a political reality. This is the unique and grand heritage to which every American citizen is born and to which posterity is entitled.. . Or as one author of the anti-Federalist papers, Robert Yates, put it: “for ages to come and millions yet unborn.”

We were first introduced to our founding principles when the colonies advanced their cause for separation from Great Britain with the Declaration of Independence. In their case to a “candid world,” they explained that the American colonies viewed liberty and the role of government in a different way than the British and as such, their society was incompatible with their mother country. It was within their right of self-determination, they argued, to break their political bonds with the King and Parliament and secede from their union with the mother country and form an independent nation. In the Declaration, Jefferson wrote: “When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”

With regard to the colonies’ unique view of liberty and role of government, the Declaration states: “We hold these truths to be self-evident that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness… That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute a new Government.” Listen to these words.. Written into our first founding document is the profound truth that the power of government comes from the people. The people are the sovereign beings from which the power and authority of government is derived and for which government must serve. That was quite different from the approach recognized in other countries — where governments were ruled by the Divine Right of Kings or barbaric tyrants. The rights of the people were always an afterthought. The Declaration of Independence represented a profound paradigm shift in the understanding of the basis of government.

Thomas Jefferson and our other founders embraced the philosophy of John Locke who in the late 17th century wrote about the rights of Man and the proper purpose and relationship of government. Locke took the concept of Natural law (Man has rights because of his humanity) and applied it to government, and we see his vision – and indeed his very words – in the Declaration. Jefferson’s second paragraph, in short, was John Locke’s philosophy on government. But his philosophy was not universally embraced. In fact, it was quickly replaced by one which stated that the proper role of government was one that created the greatest happiness for the greatest number of people. The “Individualist” approach of John Locke was replaced by the “Collectivist” or “Utilitarian” approach of those to follow – such as Jeremy Betham. Our Founders specifically rejected the collectivist approach and opted for the philosophy which saw each person as unique and endowed with fundamental rights that he can rightfully protect from the plunder, destruction, misappropriation, and misuse by others. In fact, that would be the very basis of our government – to protect the individual rights of Life, Liberty, and Property from the plunder, destruction, misappropriation, and misuse by others – and also by the government itself. How grateful we should be that of all the countering government philosophies to choose from, they chose the one articulated by John Locke to define our nation.

So how did we get from the Declaration of Independence to the Constitution, and how are they related? The Declaration was essentially a resolution passed by the Second Continental Congress to inform King George III that America had decided to separate from Britain. It essentially had no legal effect on the colonies, but it did provide a common statement of ideals that the states readily adopted and which they wanted to announce to the rest of the world. The Preamble makes such bold claims as the following: (1) that “All Men are Created Equal”; (2) that Man has inalienable (nontransferable) natural rights to “Life, Liberty, and the Pursuit of Happiness”; (3) that the role of government is to protect those rights; (4) that government is “instituted among men” (representative government) and its power comes from “the consent of the governed” (that is, it has no power except that which the people give it); and (5) that when a government becomes counterproductive of that goal, it is the right and duty of the People to “alter or abolish” that government. The American people cite these provisions as among our founding core principles. But the actual legal basis for our government, including its scope as well as its limits, comes from the Constitution. The Constitution defines the legal relationship between the individual and his government. The Constitution that was drafted in Philadelphia and signed on September 17, 1787 was only a proposal to the states. It was the states which had to agree to the terms and ratify it so that the federal government thus created could carry out mutually beneficial services in order that they could function as a Union rather than 13 independent states. And only after proper explanations and guarantees of the limited nature of the Constitution, assurances that the states would not lose any sovereign powers not duly delegated, and a promise that a Bill of Rights would be added, the states finally adopted the document.

Relying on Locke and other brilliant thinkers (including Montesquieu on the “Separation of Powers” and “Checks and balances” doctrines and Adam Smith on free markets), our Founders indeed came up with a unique, magical formula, not embraced in any other country, which, with every detail, limits government and enlarges individual liberty like never before. That unique formula, in a sentence, is this: Maximum Liberty = Minimum Government. Our Founders took those human rights and liberties that the British had fought so long and hard to keep from the reaches of the King and secured them more firmly for us – by acknowledging the sovereignty of the individual as the basis of community and government. Individual liberty is not secure when government cares more about its own interests than those of the People.

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Though battered and bruised, the Constitution of the United States still remains the framework for our nation’s government.

After decades of detachment from what’s been going on in government and in the courts and generations of ignorance of our founding documents, we are turning back to the principles that define us as “the land of the free.” But what we’ve realized is that while we’ve been busy living our lives, enjoying the comfort that no other nation in the world offers, and trusting that the government has been educating us on important lessons about our country in the public school system, the Constitution had being eroded and shredded. We wonder if it still protects our fundamental rights as strongly as it was intended. We wonder if it will be intact and will have the integrity in the future to protect the rights and interests of our children and grandchildren, or will it just continue to be clay in the hands of an ambitious government. I believe the Constitution is so fundamentally re-interpreted and is so radically altered with such amendments as the 14th, 16th, and 17th that we may never get back the protections of liberty that our Founders tried so hard to secure in the Constitutional Convention and the state Ratification Conventions. We have lost vital government “checks and balances” elements with those amendments, including the total destruction of one of the fundamental pillars of government – the equal protection of each person’s property. I believe our real concern right now is whether the government will now try to erode our more precious document – the Declaration of Independence. We can already see how it is transforming our system from an “individual” centered model to a “collectivist” or “utilitarian” one.

This issue is an important one – LIBERTY MUST BE PROTECTED AND DEFENDED. The task falls to We the People. Liberty must be deserved or no free society can long survive. So how will we know when we deserve it? First, we must be good enough as human beings to be trusted with liberty because with it comes great responsibility. And second of all, we must protect it from “injuries and usurpations,” particularly by our own government. That means we must be eternally vigilant and responsible in our election of representatives. We must be educated and informed and we must hold their feet to the fire. After all, the greatest check on government is accountability to the American people and the power of the ballot box. The words that should guide and motivate every American are those that Ronald Reagan spoke to us: “Freedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same.”

The Constitution was indeed written for those who have the most to lose and therefore would have the greatest incentive to be vigilant, educated, and decent – We the People. We were supposed to keep an eye on our government. We were supposed to be responsible depositories of power. We were supposed to be a good and moral and religious people – a people who lived decent, restrained, law-abiding lives who required little government over them and therefore could be trusted with the government that our Founders gave us and capable of passing liberty on to successive generations.

Although we hear arguments today by atheists and agnostics who disavow the role of Christianity in the founding of our nation, our founding settlers and Founding Fathers knew the real role of religion. There may have been no place for religion in our Constitution (for then we would be duplicating the religious oppression of the King and his National Church of England), but it was intended to serve a critical role in the lives of those who sought to remain free. Only a moral and religious people are fit for liberty. John Adams and George Washington gave us this advice. A moral and religious people have no need for a big government. A moral and religious people need few laws to regulate them for their conduct is decent and ethical. Only a society that places proper emphasis on religion and morality can expect to secure liberty for themselves and their posterity. England’s Lord Acton wrote: “Liberty is the prevention of control by others. This requires self-control and therefore, religious and spiritual influences, as well as education and knowledge.” John Adams wrote: “The design of Christianity was not to make men good riddle-solvers or good mystery-mongers, but to make them good men, good magistrates, and good subjects, good husbands and good wives, good parents and good children, good masters and good servants.” He also wrote: “We have no government armed in power capable of contending with human passions unbridled by morality and religion. Our Constitution was made only for a religious and moral people. It is wholly inadequate for the government of any other.”

We know that our country is suffering a constitutional crisis. In fact, we often question whether our representatives even know what the Constitution says or means. But in this crisis, we are learning the true brilliance of that document for we can see the direct consequences of a government that has refused to abide by its limits.

It’s no secret that the size and scope of government has dramatically increased. For example, in the last decade, private sector jobs increased by only 1%. Federal jobs, on the other hand, increased by more than 15%. The fact is that while people were losing their jobs and families were struggling to keep their homes and put food on their tables, government was growing. And while ordinary folks, like all of us, just wanted to work and protect and build our businesses, Congress used the recession to grow government. Congress has used every opportunity to grow government. Both Republicans and Democrats have been complicit. We all know that government positions pay a lot better than private sector jobs and they’re much more likely to be secure. After all, as Reagan said, the closest thing to eternal life is a government bureau.

Do you think people who work for the government will vote for spending cuts? Do you think they’ll vote to eliminate government jobs and therefore decrease the size of government? Approximately 16% of the voting population work for government. Most people have at least one person close to them – a spouse, a parent, a child – who holds such a job and will therefore most likely vote with them so they can keep their job… especially in this economy. So that means that at least 32% of voters will vote to support the current size of government.. When that number reaches 50%, then its GAME OVER. Big government will be here to stay and the fundamental transformation of government, which we know will threaten individual liberty, will have taken place…… not by rebellion, not by protest.. not by evil intent.. but by stealth.

Today, most ‘laws’ actually are rules and regulations enacted by bureaucrats in government agencies, not statutes passed by elected lawmakers. Even when Congress does pass legislation, such as the Dodd-Frank financial reform law or Obamacare, lawmakers leave many blanks and expect rule-makers to fill them in. That means the bureaucracy, staffed with federal ‘experts,’ essentially exists as an unelected fourth branch of government. There are over 1,300 government departments and agencies. It is said that there are so many rules and regulations that any one of us, at any given time, is breaking at least one of them. If the government wanted to come after you for any reason, they can surely find one.

Furthermore, under the guise of an undefined War on Terror (which is not a country or a defined enemy, but a tactic), the all three branches are turning the watchful eyes of government inward, on We the People. First of all, there is the official Homeland Security Report – the “Rightwing Extremism” Report – issued in April 2009 which says that conservative groups such as veterans, gun rights groups, religious groups, constitutional groups, and those who dare to express frustration with government are potential “domestic terrorists” who pose a greater threat of violence in this country than radical Islamists. Apparently, the easiest way to get on that list is to go around mentioning the Founding Fathers, or dare to cling to your guns and religion. The president has expanded his powers under the Patriot Act, in the National Defense Authorization Act (NDAA) so that now he can target American citizens with indefinite detention, torture, and even death by simply accusing them of being enemies of the state. He has personally killed at least two American citizens by drone attack…. denying them habeas corpus or the benefit of charging them with a crime.

You might ask: Isn’t the Supreme Court supposed to define what is constitutional and isn’t it supposed to protect our rights? Well, consider this: In 2008, the Supreme Court decided an extremely important case called District of Columbia v. Heller, a second amendment rights case. It was a narrow 5-4 decision. The 4 liberal justices wanted to support the government’s right to regulate gun ownership and ban guns when they see fit. They don’t believe the second amendment gives individuals the right to own and bear arms. They believe that individuals have that right only when they are part of a militia. Our second amendment rights are only very narrowly protected at this point by the Supreme Court. The government claims that even though the second amendment has been upheld, the Court left open the scope of that right. Justice Ruth Bader Ginsberg has publicly stated that she wants the issue to come before the high court again when another liberal justice has been appointed by President Obama so that “they can get it right.” If this doesn’t concern you, consider the healthcare decision which I’m sure felt like a sucker punch to your gut. I know it took my breath away. When you look at those Supreme Court decisions that evidence a clear departure from our founding intention to create a limited government, this is one of them. With that decision, Justice John Roberts has announced that not only can the government tax us when we engage in certain conduct but it can also tax us on what we don’t do. What good is your freedom when your conduct is no longer that of your own choosing? What good is it to hold the title to property when the government holds the power over the life and death of that property?

Forgive me if I appear suspicious of the federal courts. Thomas Jefferson warned us about the power of Supreme Court and the inherent corruptibility of an institution vested with great power but ruled by men motivated by the same interests and political ambitions as ordinary men. He accused them of coming too close to playing God. He described the Supreme Court as working, like gravity, day and night, gaining a little today and a little tomorrow, until it finally usurps all the power from the States and hands it to the federal government.

Our Founders separated government power into three branches of government — legislative, executive and judicial — so that they would check each other… not so they can conspire with each other to destroy our liberty interests. Each branch was supposed to keep each other in line, not look the other way. Our Constitution has managed to hold up for more than two centuries, with only occasional modifications through the years. Those are the 27 amendments. As the Constitution dictates, it is the amendment process outlined in Article V that is the proper way to make changes to the document; NOT by judicial interpretation and NOT by re-classifying the Constitution as a LIVING DOCUMENT.

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Patrick Henry once said: “A monstrous national government was not the solution…. Many had to die to be free from such a regime.”

200 years ago, our Founders pledged their lives, their fortunes, and their sacred honor to pursue the course for liberty. Today, our politicians routinely sell out their sacred honor for the chance to become career politicians. And just as sad, we have a huge segment of the voting population who has abandoned the promise of liberty for the security of a government check or government service.

Without liberty, we are slaves. Maybe not to be constrained with whips and chains, but rather with rules and regulations, conditions, taxation, fines, and imprisonment. If we can accept that, then we are ready for a master and deserve one. On March 23, 1775, Patrick Henry stood before the Virginia House of Burgesses, to address the growing tensions between the colonies and Britain and to urge the body to adopt a resolution to organize a state militia. He said: “The question before the House is one of dire importance to this country. I consider it as nothing less than a question of freedom or slavery.” He ended that speech with the immortal words: “I know not what course others may take; but as for me, give me liberty, or give me death!”

In that speech he talked about the futility of petitioning a government that has no intention of respecting the rights of the people or giving up its power over them. The colonies tried reasoning with King George for 10 years. Patrick Henry said: “We have done everything that could be done to avert the storm which is now coming. We have complained, we have protested, we have petitioned; we have pleaded; we have prostrated ourselves before the throne, and we have implored the British ministry to step in on our behalf to arrest the tyrannical hands of the King and Parliament.”

I summon the words of Patrick Henry not to urge dissent but rather to remind us of what the American Revolution was all about. It was about liberty. I also hope his stirring words will help get us off the couch and active once again in our government and to engage us in solutions.

The bottom line is that we have to scale back the size and scope of government.

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It’s no longer a topic for discussion. It’s a moral imperative. If we want to preserve liberty for our children and grandchildren, then we have to scale back government. We can’t trust government to take the initiative to divest its expanded powers or to restore the proper constitutional balance of power – which is defined in the 9th and 10th Amendments. Throughout the years, on every occasion, the three branches of the federal government have sought to enlarge its powers, not constrain or restrain them. Thomas Jefferson knew this would happen. Within the first years of our new republic, as government was already re-interpreting the Constitution, he asked: “What can we do when the government – all three branches – refuses to be bound by the limits of the Constitution? He told us there are 3 options: Judicial review (that is, take our chances with the federal courts), secession, or nullification. The courts, he reasoned, could not be trusted. In 1820, after witnessing how the Supreme Court was working with great speed to re-interpret the Constitution, he wrote: “To consider the Judges of the Superior Court as the ultimate arbiters of constitutional questions would be a dangerous doctrine which would place us under the despotism of an oligarchy. They have with others, the same passion for party, for power, and for the privileges of their corps – and their power is the most dangerous as they are in office for life, and not responsible, as the other functionaries are, to the Elective control. The Constitution has elected no single tribunal. I know no safe depository of the ultimate powers of society but the people themselves.” And the following year later, he wrote: “The germ of dissolution of our federal government is in the constitution of the federal judiciary: an irresponsible body, working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction until all shall be usurped from the States, and the government of all be consolidated into one. To this I am opposed; because, when all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the centre of all it will render powerless the checks provided of one government on another and will become as venal and oppressive as the government from which we separated.”

Jefferson said that secession, while always a viable option, must be viewed as the most extreme measure and avoided at all costs. But Nullification, he articulated, is the rightful remedy. It is the remedy grounded firmly in our federal system and legally available by the nature of the compact that brought the states into agreement regarding their common agent – the federal government. It puts the power in the hands of the parties that had the power to begin with – the states and the People.

People like to dismiss and discredit Nullification by labeling it a racist doctrine. They claim that because the racist Southern Democrats tried to use it in their states to resist the de-segregation mandate imposed by the Supreme Court in Brown v. Board of Education, it is somehow unconstitutional and not a legitimate doctrine. Yet these same critics would be happy to accept a decision by the US Supreme Court – a branch of the federal government – that held that negroes are “beings of an inferior order and altogether unfit to associate with the white race, either in social or political relations; and are so far inferior that they have no rights which the white man is bound to respect; and that the negro might justly and lawfully be reduced to slavery.” [Dred Scott decision, 1857]. Either you accept the right of a state to challenge any act of the federal government that exceeds constitutional bounds (which the southern states did with the Brown decision, as unfortunate as that challenge was), or you resign yourself to the fact that the government is always right, always has the final say, always has the power to define its own limits of power, and always trumps the parties that in fact created it. Only one position protects liberty.

The responsibility falls upon citizens like us to educate ourselves on Nullification and vet candidates in our state legislature and on the local level who embrace this Jeffersonian remedy.

Probably the most important of our founding principles is this: Government derives its just powers from the consent of the governed. We have a bottom-up system, where power derives from the Individual. Not a top-down scheme. The Constitution is our document to limit government and NOT the government’s document to try to regulate us. As Patrick Henry wrote: “The Constitution is not an instrument for the government to restrain the people, it is an instrument for the people to restrain the government – lest it come to dominate our lives and interests.” Government serves the interests of the people. The people are not supposed to serve the interests of government.

Again, the Constitution was written for those who have the most to lose and therefore would have the greatest incentive to be vigilant and educated – We the People. And so we must be its faithful guardians. “For those to whom much is given, much is required.” We can’t allow the government to redefine it or abuse it to the point where we the people are left without the means of defending our God-given rights.

We have survived for two and a quarter centuries. But our republic is in dangerous peril. We are confronted with a fierce urgency and an ideological conundrum. We stand between the forces that wish to ‘transform‘ America and the forces that wish to ‘restore‘ her. We all know that transformation implies a contempt or dissatisfaction, whereas restoration implies honor and respect.

The big question, of course, is this: If we do nothing, what will become of our Inalienable Rights? Government has already strayed away from its intended purpose. All levels of government have abused their powers. The federal government is no longer constrained by the document that alone gives it permission and limits on what it can legally do — that is our Constitution.

It no longer protects our Life, Liberty, and Property. It actively looks for ways to regulate each of our most precious human rights. It attacks our Life with the Obamacare. It attacks our Liberty with the Patriot Act, the National Defense Authorization Act, the TSA at our airports, and with the Supreme Court’s healthcare decision (since according to Justice John Roberts, the government not only has the power to tax Americans when they engage in certain activities, but they can also tax them when they refuse to engage in conduct that the government wants them to engage in; ie, it has the power to use taxation to coerce people into doing something that the government wants them to do). And it attacks our Property with the federal income tax system and Agenda 21. The government’s evil, liberty-killing scheme is funded by the power of plunder that was granted it under the 16th Amendment. The government plunders our very natural human resources — our Property…. the fruit and improvements of our property, the products of our labor, and the creations of our mind. Individuals have become pawns of a government that seeks primarily to advance its own agenda rather than serve their individual liberty interests. And right now, the government is using the economy to control us and advance its socialist/utilitarian agenda.

A government that can create economic stress is in a good position to constrain our liberties. A hungry man thinks about food, not freedom.

Last year Glen Beck wrote this: “The riddle today is the same one faced by our Founding Fathers when they began their experiment. Societies need government. Governments elevate men into power, and men who seek power are prone to corruption. It spreads like a disease. And sooner or later the end result is always a slide into tyranny. That’s the way it’s always been. And so this government of the United States, so brilliantly and deliberately structured by our Founders, was designed to keep that weakness of human nature in check. But it required the people to participate daily, to be vigilant. And we have not. It demanded that we behave as though government is our servant, but we have not. So while we slept, the servant has become our master.”

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It looks as though the focus of government has shifted on its end and we have bared raised an eyebrow. The “injuries and abuses” that the colonies would not tolerate from King George are being repeated by our own government but no one has even taken notice or even cares. Maybe liberty can’t survive. Maybe it is inherently destructive of its own ends. Maybe complacency is a fatal flaw in human beings. People who suckle at the government teat are not exactly the guardians of liberty that our Founders had in mind.

I want to end with this bit of history: In his opening speech at the Virginia Ratifying Convention in 1788, Patrick Henry warned: ”A wrong step now will plunge us into misery and our republic will be lost.” He pleaded: “Liberty is the greatest of all earthly blessings. Give us that precious jewel and you may take everything else. There was a time when every pulse of my heart beat for American liberty and which, I believe, had a counterpart in the breast of every true American.” He went on to urge his fellow delegates to regard the Constitution with suspicion and caution. He feared it might lead to too much government power, at the expense of the States, thereby negating the reason for the American Revolution.

Let those words remain with us: “A wrong step now will plunge us into misery and our republic will be lost. Liberty is the greatest of all earthly blessings.”

Diane Rufino is a molecular biologist-turned constitutional attorney.She heads the Eastern NC Tea Party (Pitt County area), is the legislative chair for the Republican Women of Pitt County, and volunteers with the Beaufort County chapter of the National Center for Constitutional Studies.She writes about constitutional issues and her articles appear on her website, as well as in many online journals around the state and nationwide. Diane was born in New Jersey and lived there most of her life. She attended Seton Hall University School of Law where Judge Andrew Napolitano was her constitutional law professor.She and her family moved to Greenville, NC in 2001.She is married and has 4 children.